An
edited version of this article first appeared in the April 23, 2010
issue of the National Post.
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If the
Supreme Court Ain't Broken....

If
ever Canada’s senate needed an opportunity to demonstrate its value by
imparting“sober
second thought” to the legislative process, that moment arrived on
April 13, 2010 when Bill C-232 landed on senators’ desks.

A
private member’s bill promulgated in the House of Commons by New
Brunswick NDP member Yvon Godin, C-232 would require that all future
judges appointed to the Supreme Court of Canada (SCC) be able to
understand both French and English “without the assistance of an
interpreter”.

The
bill whizzed through the Commons in less than a month.It passed by 140
votes to 137, supported by the NDP, the Bloc Quebecois and the
Liberals, with 31 members of the 308-member house unaccounted for.What little debate
occurred indicated that some MPs are shockingly ill-informed about
Canadian law and court procedures.

The
case was already made in a National Post editorial published April 20
that superior legal reasoning, rather than superior linguistic skills,
should be the definitive criterion for appointment to the court.The editorial also
pointed out that the bill would ensure the future domination of the SCC
by judges from Quebec, thereby diminishing the court’s credibility for
many in the Rest of Canada.

But
the bill raises additional questions.One is whether it
would even be constitutional.The Canadian Charter
of Rights and Freedoms requires laws to be non-discriminatory on the
basis of characteristics such as ethnic origin.Case precedents say
that even neutrally worded laws can be discriminatory if in practice
they have what’s called the “adverse effect” of excluding large swaths
of the population belonging to a particular group.This law would in
practice discriminate against those of anglophoneor
immigrant origin, since statistically they are far less likely to be
fully bilingual.

While
the constitution does permit affirmative action programs to override
the equality guarantee in order to benefit disadvantaged individuals,
it is hard to imagine bilingual appellate court judges or bilingual
lawyers with ten years’ experience—the two groups who would benefit by
this bill—being characterized as disadvantaged.

Discrimination
is sometimes a tolerated evil when job criteria are bona fide
occupational requirements.However, none of the
bill’s proponents produced even a single example of an SCC decision
that appeared to have been wrongly decided because of faulty
translations.If
it were true that judges cannot genuinely understand a case unless they
have read it in its original language, the court’s 143-year history
should be riddled with instances of judicial misunderstanding.Instead, MPs who
spoke in favour of the bill mentioned problems such as long waiting
times for French-language trials in lower courts, or inaccurate amateur
translations of election campaign literature—both utterly irrelevant to
what goes on in the SCC.

One
MP argued that there may be nuances of language that cannot be conveyed
in a translation no matter how proficient the translator.But
would such extreme subtleties necessarily be understood even by all
native speakers of the original language?How fully do any two
people ever really understand each other?Every human being
brings to each communication his own unique experience and knowledge.The need for
explanation and clarification due to these differences among
individuals is probably more common than the occasional instance when a
nuance cannot be translated into another language, yet we don’t
conclude that justice therefore cannot be done.

In
any event, Supreme Court judges aren’t locked away in isolation
chambers with nothing but their own brains to rely upon.The court’s practice
is actually to convene en masse and discuss the cases before writing
their decisions.If
it appears during these meetings that the anglophone justices are
missing some poorly translated nuance of French, no doubt the
francophones—there are 3 positions reserved on the SCC for justices
from Quebec—will let them know.

If
we concede to the fallacious argument that those who interpret our laws
must be able to understand them in both languages, surely the next
demand will be that those who make the laws—all MPs and senators—should
be similarly capable.Otherwise,
how would they really know what laws they are enacting?If court
translations are inadequate, parliamentary translations must be equally
suspect.

This
of course is nonsense, just as the premise behind Bill C-232 is
nonsense.One
cannot help but suspect that this attempt to pack the court with
francophones has ideological roots rather than any genuine concern
about comprehension.

The
law wasn’t broken, so let’s hope the senate has the good sense not to
capitulate to this spurious attempt to fix it.